Zagajewski v. Zagajewski

314 N.E.2d 843, 161 Ind. App. 98, 1974 Ind. App. LEXIS 909
CourtIndiana Court of Appeals
DecidedJuly 31, 1974
Docket2-173A8
StatusPublished
Cited by9 cases

This text of 314 N.E.2d 843 (Zagajewski v. Zagajewski) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zagajewski v. Zagajewski, 314 N.E.2d 843, 161 Ind. App. 98, 1974 Ind. App. LEXIS 909 (Ind. Ct. App. 1974).

Opinions

White, J.

Defendant-husband appeals from that part of a decree of divorce which awards nearly all of the property of the parties to the plaintiff-appellee-wife; orders her to pay him $1,626.55 concurrently with the execution of a commissioner’s deed conveying his interest in the entireties real estate to her; and orders him to pay her attorney attorney’s fees of $850.00 and the court costs.

Although the trial court somehow found it possible to be exact to the fraction of a dollar in determining what the wife should pay the husband, we find it impossible to discover in the transcript of the trial evidence the basis for any.finding of fact as to net values which could produce that result, or anything approximating it. The evidence is simply not that exact, certain and precise. In fact it is quite the opposite: so vague, ambiguous, and incomplete that we cannot determine with any substantial degree of certainty whether appellant is correct in asserting that he was given only seven percent of the moneys and properties of the parties while the appelleewife is given the remaining ninety-three per cent. However, the appellee has not directly disputed the accuracy of those percentages and we find them substantially correct. We also find that the evidence most favorable to the appellee discloses that all of the property and money involved was acquired during the twenty-five year marriage during which both husband and wife were employed substantially all of the time and earned over the whole time substantially the same total amount. The only significant exceptions to that statement being (1) that during the year 1952 (when the first child was born and when the wife went to California to be with the husband who had been recalled to active military duty during the Korean War), the wife had no income and (2) that since the husband became ill and disabled his income has shrunk to disability benefits paid by the Veterans’ [100]*100Administration, the Social Security Administration, and possibly some employment related private insurance benefits.

The bulk of the mutual estate is the family residence in rural Cass County valued at $25,000.00, subject to a mortgage of $2,746.96, leaving a net value of $22,253.04. That property was acquired in 1948, and title is in the name of both husband and wife as tenants by the entireties. While the wife’s testimony is that she made all the mortgage payments from her income as a school teacher, there is no evidence that appellant squandered or secreted his income during that time or that he spent it on anything except normal family expense. (The evidence as to family savings accumulated in an account in the husband’s name and substantially depleted by withdrawals by the wife since he became ill is so vague, incomplete, and indefinite as to furnish no basis for any conclusion.) In short, it appears from the evidence most favorable to the wife that this entireties property, and the parties’ equity in it, were acquired by substantially equal efforts and contributions of the parties.

The parties have two children, a daughter nineteen years old at trial date, and a son then fourteen years of age. The daughter was then living in Indianapolis where she had a part time job while attending Patricia Stevens finishing school. She owned and had possession of an automobile purchased with the proceeds of her own bank loan on which her mother was co-signer. The daughter was making the car-bank-loan payments but the mother testified that she anticipated that she (the mother) would have to pay the balance of the daughter’s tuition, $1,490.00, and $392.00 board and room ($98.00 per month for four months). The court found that the daughter was not emancipated but that no order for her support should be made, nor was any order for her custody made.

Custody of the fourteen year old son was awarded to the appellee-wife and appellant-husband was ordered to pay or [101]*101cause to be paid to her the full Social Security Administratfon allowance for his support.

The appellee-wife, at time of trial, is in good health (except for taking tranquilizers for her nerves), fifty-three years of age, is an employed school teacher who earned over ten thousand dollars in the year preceding the trial. The appellant-husband, fifty-six years of age, is totally disabled (as to gainful employment), but is ambulatory, able to drive his automobile, and apparently able to care for himself. After the divorce he will draw two hundred sixty dollars per month in social security and veterans benefits, plus full medical and hospital expenses and $98.00 monthly for the son’s support.

The divorce was granted on the ground that appellant-husband was guilty of cruel and inhuman treatment. There was no evidence of physical abuse or infidelity. As summarized by appellee, the husband’s misconduct was that he

“. . . constantly bickered and frequently embarrassed the wife in public and refused to accept any responsibility toward his children. Furthermore, the Defendant even ordered his daughter out of their home on at least two occasions. Although the Plaintiff refused to have intercourse with the Defendant, during the past three years, the record cannot support the conclusion that this constituted misconduct on the part of the Plaintiff. The testimony is conflicting as to the reasons for their inability to engage in normal marital relations, however, it is clear that the Defendant ordered the Plaintiff out of the bedroom. The Defendant should not expect a warm and receptive wife after abusing her through bickering and profane language. In spite of this conduct by the Defendant, the Plaintiff took care of the Defendant during his illness and stayed with him.”

In Shula v. Shula (1956), 235 Ind. 210, 216, 132 N.E.2d 612, 615, the court rejected the proposition that an innocent and injured wife is entitled to be awarded all of the entire-ties property because she is entitled to be put into as good condition as she would be on her husband’s death. That rule (see Glick v. Glick [1927], 86 Ind. App. 593, 596, 159 N.E. [102]*10233) the court said has no application to entireties property. While Simla, did not expressly so hold, it strongly implied that, absent some reason for giving the wife more, a fair division of property would give each party the equivalent of one half the value of real estate they held by the entireties. In Simla the court reversed a decree in which the wife was awarded $25,000.00 in property and cash and the husband was given $14,000.00. (Of the total $39,000.00 in property and cash, approximately $20,500.00 was the net value of the entireties real estate.) That division was less disparate than at bar but the record on which it was based gave the court the same problem we face here:

“We are not able to determine upon what factual foundation or rule of law the above decree is based. Alimony is awarded in Indiana for the purpose of making a present and complete settlement of the property rights of the parties. It does not include future support for the wife, nor is it intended as a medium for providing financial compensation for injured sensitivities during marriage. The primary factor in fixing the alimony is the existing property of the parties.

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Zagajewski v. Zagajewski
314 N.E.2d 843 (Indiana Court of Appeals, 1974)

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Bluebook (online)
314 N.E.2d 843, 161 Ind. App. 98, 1974 Ind. App. LEXIS 909, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zagajewski-v-zagajewski-indctapp-1974.